August 2008

The importance of comprehensive training & safety regime - managers acquitted in prosecution over workplace death

The Industrial Court of NSW recently dismissed Occupational Health and Safety charges brought against a director and a manager of a corporation.

The accident

In Morrison v Milner and Baldwin, the Department of Mineral Resources brought a prosecution against the Mine Manager (Mr Milner) and the Managing Director of the mine (Mr Baldwin) arising from the death of a miner, Greg Aspinall, in a roof fall at the mine.

At the time of the accident, Mr Aspinall was trying to retrieve a remotely controlled mining machine which had broken down under an unsupported roof. To reach the machine, the mining crew had to carry out work to support the mine roof. Various methods were available to do that. However, authority had been obtained from one of the officials appointed under the Coal Mines Regulation Act to carry out work of this kind using a series of timber props.

As the first prop was erected, it dislodged a rock in the roof, which fell and killed Mr Aspinall.

Nature of the charges

One of the questions the Court had to determine was whether the mining company had breached the Occupational Health & Safety Act by failing to ensure the health, safety and welfare of its employees at work. If it had Mr Milner, as Mine Manager, and Mr Baldwin, as Managing Director, would be deemed to have committed the same offence under the Occupational Health & Safety Act.

The evidence was that in various presentations before the accident, Mr Milner, the Mine Manager, had told the miners every situation involving the retrieval of a mining machine was different, and they needed to use their discretion whether to use timber props, hand held roof bolters or a Fletcher bolter (a larger piece of machinery).

Although the mine had introduced a written work procedure for retrieving broken down machines under the previous "cut and flit" method which was used to mine, there was no written procedure for the mining method, known as "pillar extraction", which had been introduced shortly before the accident and was being used at the time of the fatality.

One of the Prosecutor’s main allegations was that the safe work procedure for retrieving broken down machines should have been in writing.

Thorough system of training

In dismissing the charges against both defendants the Industrial Court found that the mine management had implemented a comprehensive system of training and tool box talks, outlining to the miners the safe work options available to them to retrieve an immobilised machine.

Justice Haylen followed the decision of the Court in another case in which Bartier Perry acted for the defendant, Inspector Kilpatrick v Jae My Pty Limited, which held not all work systems need to be documented, as long as workers had a clear understanding of safe work methods and have been properly trained in those methods.

Evidence was also presented to the Court that the defendants had been diligent in ensuring the safety of the work being undertaken by Mr Aspinall at the time of his death. However, because the Court found there had not been a failure by the mining company to ensure the safety of its employees, it was not necessary for the Court to decide whether the defendant Mine Manager and Managing Director had exercised all due diligence to prevent the safety breach.

The Department of Mineral Resources has filed an appeal against the acquittal of the defendants in this case. That appeal will be heard later in the year. However, based on the decision of Justice Haylen this case supports the proposition that if an employer has in place a thorough and comprehensive safety training regime, it is not necessary (although it may be desirable) to have those instructions reduced to writing.

Bartier Perry

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